The New Republic

The New Republic

The Hobby Lobby Decision Is Coming Soon—and It Won't Just Affect Contraception

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This month—possibly as soon as Monday—the Supreme Court will rule on one of the first major conservative attempts to limit the scope of Obamacare: Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius, two related cases that challenge the Affordable Care Act’s requirement that most company insurance plans must cover contraceptives. If the Court decides in favor of the plaintiffs, the decision could have far-reaching effects not just for women, but for many other American workers too.

Here’s the backstory: The ACA requires companies to cover birth control, but the mandate exempts churches and strictly religious employers. It also allows non-profits with religious affiliations (for instance, a Catholic charity) to provide contraceptives through a third party. However, the mandate does not exempt any for-profit employers—even those that are owned by religious families. Hobby Lobby, for instance, is owned by the Green family, who are evangelical Christians, while Conestoga Wood is owned by the Hahn family, who are Mennonites. Both owners have stated that covering certain contraceptives would violate their religious beliefs—for example, they view Plan B, which can prevent pregnancy when taken up to five days after unprotected sex, as a form of abortion.

When the companies filed suit against Obamacare, they argued that the contraceptive mandate breaches the 1993 Religious Freedom Restoration Act (RFRA), which states that the government cannot “substantially burden religious exercise” unless there is a compelling interest met in the least restrictive means. The Court will not look at the whether the owners’ religious beliefs are accurate, but whether the mandate will substantially burden the corporation, says Laurie Sobel, a senior policy analyst for women’s health policy at the Henry J. Kaiser Family Foundation. The plaintiffs have argued the fine they will face for noncompliance with the mandate would be a substantial burden.

If the Court rules in favor of Hobby Lobby and Conestoga, the implications will depend on the scope of the Court’s ruling. They could apply the decision narrowly to family-owned or so-called “closely held” companies (which have a limited number of shareholders) like Hobby Lobby, which has 16,000 full time employees. Or they could also encompass all privately held companies, which would apply to corporations such as Dell Inc., owned by Michael Dell.

If the Court does decide in favor of Hobby Lobby and Conestoga Wood, here are the key things to watch for:

1.If a woman works for a company covered by the ruling, her access to contraceptives paid for by her insurance will depend on the religious views of her employer’s owner. If the Court applies its ruling to all for-profit companies, these types of claims could be brought by any for-profit employer, Sobel said, including publicly held companies. “It would allow that door to be open,” she said.

2.Employers could seek exemptions to coverage of other types of medical care based on personal religious beliefs. For example, Jehovah’s Witness owners could request an exemption from providing coverage for blood transfusions, since the treatment goes against the religion’s belief system. These exemption requests would likely be assessed on a case-by-case basis, Sobel said.

3. This decision could allow companies to deny other types of benefits to employees based on religious beliefs. For instance, gay rights groups fear that a pro-Hobby Lobby decision could lead to companies denying spousal benefits to same-sex couples. In February, the Arizona state legislature passed a law that would allow businesses to restrict service to gay customers based on the business’s religious beliefs. The statute was vetoed by Arizona Governor Jan Brewer after heavy lobbying from Arizona business leaders, Democrats, and Republicans, but Mississippi passed a similar law in April. “It depends how the Court crafts the decision to see how far that door is open, how many people can bring lawsuits, and if it’s at the federal or state level,” Sobel said.

4. Employers might be able to restrict insurance coverage for doctor’s visits at which providers discuss contraceptive options with patients. In lower court briefs, Hobby Lobby and Conestoga Wood said that “education and counseling” for certain contraceptives were also contrary to their beliefs. Although this information was not included in the Supreme Court briefs, these briefs are included on the record. “It is an interesting question as to whether that will be included in the decision,” Sobel said. “It might be one of those gray areas after the decision.”

5. Congress could respond. “Depending on the ruling, I think we’re likely to see an attempt by Congress to amend RFRA in some way, either to include for-profit companies or exclude for-profit companies,” Sobel said.

6. For-profit companies included in the decision could challenge state-based laws. Although RFRA applies only to federal statutes, many states have passed similar legislation protecting religious beliefs. There are contraceptive coverage requirements at the state level, so for-profit companies could try to invalidate those as well.

7. Employees of Hobby Lobby and Conestoga Wood could file a Civil Rights Act lawsuit. There has been speculation that if Hobby Lobby did win, employees could file a Civil Rights Act Title VII complaint, claiming that the company is treating female employees differently than men.